The distribution contracts: an Iberian approach

• Author: Sónia de Carvalho
• Position: Assistant Professor
• Pages: 40-75

The distribution contracts: an Iberian approach

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Assistant Professor Sónia de CARVALHO

2

Abstrac t

The contracts of c ommercial distribut ion are indispen sable leg al instru ments t o

the development of the economic activ ity. The distribut ion, since the i ndustri al revolutio n,

acqui red auto nomy, given the nec essity of speci alized intermedia tion to distribute good and

produ cts. In this process, the structu ral orga nization of the d istributio n process suffered

mutati ons, starting to assume a set of ac tivities aiming at adjustin g deman d to suppl y,

inclu ding, among others, clien ts canvassin g, after-sales services, fina ncing and assumpti on

of risks, adviso ry services, promotion an d advertising . The i nsufficienc y of traditio nal

contra cts of purc hase and sales a nd commission to satisfy the distrib utive needs ca used by

the industrial revoluti on will justify the development of new con tractual sch emes, such us

agenc y contrac t, commercial concessio n and franchi sing. The obliga tion of the dist ributer

to ensure the interests of the producer a nd to promote th e distrib ution o f the goods and

services of th e pro ducer, i n the cont ext of a lasting relation of coopera tion be tween th e

parts, thro ugh which the distrib uter is incorpo rated, with gre ater or minor inten sity, in the

produ cer di stribution netw ork, a llowed us to sustain, as affirmed in the Portu guese and

Europea n literat ure, that distrib ution contra cts could be framed in the same legal catego ry.

These contract s, a s contrac ts that were shape d by p raxis, do n ot hav e, with ex ceptio n of

agenc y c ontract, a lega l framewo rk in Portuga l and Spain . It ha s be en discussed in

litera ture if ag ency cont ract lega l framework can be appl ied, by analo gy, to the cont racts

that fit in t he leg al c ategory of dist ribution contract s. This paper ai ms at ana lyzing th e

legal framework of contracts of d istributio n in these legal systems, with the pu rpose to

discuss th e analogi cal appli cation of the ag ency contrac t to these cont racts.

Keyword s: the distribu tion contracts, t he conce ssion cont ract, agen cy cont ract,

franchise a greement

JEL Cla ssification: K12, K22

1. Introduction

Commercial distribution, in the economic process, is the activity of

intermediation between supply and demand, through which the producer, using

intermediaries, delivers products and services to consumers, while at the same time

seeks to determine and meet the needs of the latter.

1

This art icle w as submitted to 6th International Conference “ Perspectives of Business Law in the

Third M illennium”, 25 -26 November 2016, the Bucharest University of Economic Studies,

Bucharest, Romania.

2

Sónia de Carvalho - Portucalense Infante D. Henrique University, Department of Law, Researcher at

IJP - Port ucalense Institute for Legal Research, Porto, Port ugal, scarvalho@upt.pt

Juridical Tribune Volume 6, Issue 2, December 2016

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With the industrial revolution, this stage of the production process acquired

autonomy, as the surpluses of mass production subordinated the production to the

law of supply.

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Therefore, the commercial distribution is no longer centered on the

physical distribution of products, performing a set of activities aiming at adjusting

demand to supply, including, among others, clients acquisition, after-sales services,

financing and assumption of risks, advisory services, promotion and advertising.

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The difficulties revealed by the traditional purchase and sales and

commission contracts to answer to the demands of this complex distribution

process will be the source of the development of new contractual schemes, such us

agency contract, commercial concession contract and franchising.

These commercial distribution agreements are legal instruments necessary

for the development of economic activity.

As models shaped by praxis, these contracts, with exception of the agency

contract, do not have a legal framework in the Spanish and Portuguese legal

systems.

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Only the agency contract, owing to the legal framework provided by the

Directive 86/653/EEC, is regulated in both legal systems, being discussed, by

literature and case law its application to distribution contracts owing to the analogy

among the contracts.

2. Brief characterization of the contracts under analysis

2.1 Ag ency Contract

The commercial agent performs an economic activity, organized, that

includes material acts of varied content, in a stable and autonomous way, in order

to promote the conclusion of contracts, on behalf of the principal

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, upon payment

of retribution.

3

See Esperanza Gallego Sanchez, La franquicia, Trivium Editorial, Madrid, 1991, p . 29, note 88.

4

See Ignacio M oralejo Menéndez, El contrato mercantil de concesión, Editorial Aranzadi, Navarra,

2007, p. 27. About t he functions of distribution, s ee Enrique Díez de Cast ro, Antonio N avarro

Garcia, Naturaleza de la distribución, “Dist ribución Comercial”, Enrique C. Díez de Castro

(coord.), 3ª ed., McGraw-H ill, Madrid, 2004, pp . 7 ff.

5

In Propuesta de Código Mercantil elaborada por la Sección de Derecho Mercantil de la Comisión

General de Codificación, the commercial distribut ion contracts, which included the contract

concesión mercantil and the contrato de franquicia, were regulated in article 543. However, the

Anteproyecto de ley del Código Mercantil no longer rules these cont racts, only p roviding a legal

framework to agency contract, that replicates the regulation enacted by Ley 12/1992, de 27 de

mayo (LCA).

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The agency contract has its own legal framework, enshrined in Decreto-Lei nº 178/86, de 3 de

Julho, as amended by Decreto-Lei n.º 118/93, de 13 Abril, which brings into force Council

Directive of 18 December 1986 on the coordination of the laws of the M ember States relating to

self-employed commercial agents. Decreto-Lei nº 178/86, d e 3 de Julho, has enacted the concept

already accepted in doctrine and in case law.

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The agent acts on behalf of the principal, pursuing the interests of the

principal, within a long-term relationship of collaboration between both, whose key

feature is the obligation to promote the conclusion of contracts.

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The obligation to promote the conclusion of contracts is based on a

multiplicity of material acts designed to seek potential buyers, to encourage and

increase the conclusion of contracts relating to goods or services, collecting

purchase orders and communicating them to the principal.

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Stability is another essential element, as a result of which the agent's

activity is a series of acts intended to be carried out during the period for which the

contract has been determined, within the framework of a long-term relationship.

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The economic results that the parties aim at achieving within the agency

contract can only be attained in a stable and lasting relationship.

The autonomy of the agent is also an essential element of the agency

contract, notwithstanding its obligations as regards to follow principal guidelines

and to provide a regular report of its activity.

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We adopt, as the Portuguese legislator in Decreto-Lei nº 178/86, de 3 de Julho, t he term principal

to designate t he agent's counterpart. See Pinto M onteiro, Contrato de agência (Anteprojecto), BMJ

nº 360, 1986, pp . 60-62. The Spanish legislator has adopted the t erm empresario.

7

Pinto Mont eiro, Contrato de agência (Anteprojecto), cited above, p . 48, Martinez Sanz, La

indemnización por clientela en los contratos de agencia y concesión, 2ª ed., Civitas, Madrid, 1998,

p. 31.

The pursuit by the agent of the interests of principal led the German literature to include t his

contract in the category of geschäftsbesorgungsvertrag. See Canaris, Handelsrecht, 23 Auflag,

Verlag C H Beck, München, 2000, p. 322.

See P into Mont eiro, Contrato de agência (Anteprojecto), cited above, p p. 54-55, Manuel Broseta

Pont, Manual de Derecho Mercantil, Vol. II, F ernando M artinez Sanz (coord.), 15ª ed., T ecnos,

Madrid, 2008, pp . 122 ff.

The agent performs in this contractual scheme obligations of means and result. On the one hand,

the p romotion, dissemination of p roducts and clients acquisition s eem to be obligations of means,

on the ot her hand, the obligation to p repare contracts that will later be fulfilled by the principal

seems to be an obligation of result, since the commission is indexed to contracts promoted by the

agent and fulfilled by the p rincipal. In the same sense, Roberto Baldi, Il contratto di agenzia. La

concessione di vendita. Il franschising, 7ª ed., Giuffrè Editore, M ilano, 2001, pp . 29-30, Marino

Perassi, Il contratto di agenzia , “Trat tato di Diritto Commerciale e di Diritto Pubblico

del’economia”, Vol. XVI, “Contrat ti commerciali”, D iretto da Francesco Galgano, Cedam,

Padova, 1991, p. 423.

Galgano, Diritto civile e commerciale, Vol. III, T omo I, Cedam, Padova, 1990, p. 13 and Saracino

E/Toffoletto F, Il contratto di agenzia, “ Il Codice Civile - Commentario”, diretto da Schlesinger,

Giuffrè, Milano, p. 40, sust ain that is an obligation of means.

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Ghezzi, Del contratto di agenzia,“ Commentario del Codicie Civile a cura di A . Scialoja e G.

Branca”, Libro quarto: Delle Obblizazioni art. 1742-1753, Zanichelli, Bolonia-Roma, 1970, p. 4,

note 10.

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This is the hallmark of t he agency contract towards the brokerage contract. See Roberto Baldi, Il

contratto di agenzia, cited above, pp. 47-48, M aria Teresa Caracciolo, Il contratto di agenzia, “I

contratti di distribuzione. Agenzia, mediazione, promozione finanziaria, concessione di vendita,

franchising. Figure classiche e new economy”, a cura di Giusepp e Cassano, Giuffrè, Milano, 2006,

p. 156.

10

This feature distinguishes the agency contract from the employment contract, characterized by t he

legal subordination of the employee towards the employer. See Pedro Romano Mart inez, Direito

do Trabalho, 7ª ed., Almedina, Coimbra, 2015, pp . 346 ff.